Saibaba Vs. Bar Council of India & Anr  Insc 266 (6 May 2003)
R.C. LAHOTI & ASHOK BHAN. WITH
C.A.No.3986/2003 (@S.L.P.(C) No.4477/2002) C.A.No.4010/2003 (@S.L.P.(C)
No.23108/2002) C.A. No. 1951/2002 R.C. Lahoti, J.
Leave granted in SLP(C) Nos.4477/2002 and 23108/2002.
This common judgment disposes of two appeals by special leave under Article
136 of the Constitution, an appeal under Section 38 of the Advocates Act, 1961,
and a civil writ petition laying challenge to the constitutional validity of
Section 48AA of the Advocates Act, 1961,
hereinafter, the Act for short.
Smt. D. Anuradha, the respondent No.1 in the Civil Appeals is the wife of D.
Saibaba, the appellant. The marriage has broken down and the spouses have
fallen apart. On 25.8.1999, the wife filed a complaint under Section 35 of the
Act complaining of professional misconduct committed by the appellant, alleging
that in spite of his being a duly enrolled advocate, he was running a telephone
booth allotted to him in the handicapped person's quota. After hearing the
appellant's response the State Bar Council of India, vide its order dated
6.11.1999, directed the complaint to be dropped forming an opinion that no case
for proceeding against the appellant was made out. On 30.12.1999, the wife
lodged yet another complaint making almost identical averments. The appellant
filed a detailed reply. He submitted that the complaint was malicious,
originating from a disgruntled wife who has even lodged criminal case against
him and was out to harass the appellant. The appellant's defence was that he is
a handicapped person. Pressed by family circumstances, including financial
stringency, he applied for a STD booth being licensed to him in the handicapped
persons quota, which, on consideration of the merits of the prayer, was allowed
to him. He did operate the STD booth. On 4.12.1997 he was married to the
Thereafter, sometime in mid-1998, he applied for his enrolment as an
advocate and commenced apprenticeship under a senior lawyer.
Eversince that day he stopped sitting at the telephone booth which was
thenceforth operated by his parents. His father had retired by that time.
By order dated 20.2.2001, the Bar Council of India directed the appellant to
surrender the STD booth, presumably forming an opinion that whosoever might be
conducting the STD booth actually, yet the booth was allotted in the name of
the appellant and the surrender would bring to an end the controversy so far as
the appellant's conduct as an advocate is concerned. The appellant sought some
time for surrendering the licence of telephone booth because certain dues were
to be realised from customers which would be difficult to do in the event of
the business being suddenly discontinued. As the appellant failed to surrender
the STD booth, the Bar Council of India passed an order dated 31.3.2001
advising the State Bar Council to delete the name of the appellant from the
rolls of advocates. On 26.4.2001, the appellant surrendered the booth. The
appellant sought for a review of the order of the Bar Council of India based on
the subsequent event of the telephone booth having been surrendered.
Vide order dated 26.8.2001, the Bar Council of India has rejected the
petition for review on the ground that the same was barred by time.
As against the order dated 26.8.2001 the appellant has filed appeal by
special leave. As against the order dated 31.3.2001 the appellant has filed a
statutory appeal under Section 38 of the Advocates Act, 1961
and also an appeal by special leave.
Section 48AA of the Advocates Act, 1961
reads as under:- "48AA. Review. The Bar Council of India or any of its
committees, other than its disciplinary committee, may of its own motion or
otherwise review any order, within sixty days of the date of that order, passed
by it under this Act." In the opinion of the Bar Council of India the
limitation commences from 'the date of that order' which is sought to be
reviewed. The submission of the review-petitioner was that he could not have
sought for review of the order unless the order was communicated to him and
therefore the expression 'the date of that order' should be construed as
meaning the date of communication of the order. The Bar Council of India formed
an opinion that there is a lacuna in the provision which cannot be removed by
it. The Bar Council in its impugned order compared the provisions of Section
48AA with the provisions contained in Sections 37 and 38 of the Act.
Section 37 provides for an appeal against an order of the disciplinary
committee of a State Bar Council being preferred to the Bar Council of India
within 60 days of 'the date of the communication of the order' to the person
aggrieved. Section 38 provides for an appeal by any person aggrieved by an
order contemplated therein being preferred to the Supreme Court within 60 days
of 'the date on which the order is communicated to him'. The opinion formed by
the Bar Council is that the employment by Parliament of different phraseology
in Sections 37 and 38 and Section 48AA is suggestive of the legislative intent
that while the limitation for an appeal under Sections 37 or 38 is to be
calculated from 'the date of the communication of the order', the limitation
for review under Section 48AA commences from 'the date of the order' sought to
be reviewed and not from the date of communication of the order. The review
petition was dismissed as barred by limitation without going into the merits.
During the pendency of these appeals the appellant has filed an original
petition laying challenge to the constitutional validity of Section 48AA on the
ground that the provision (as construed by the Bar Council of India) is
unworkable and hence liable to be struck down. The appeals and the civil writ
petition were placed for hearing analogously.
We have heard the learned counsel for the appellant/writ- petitioner and the
respondents, Bar Council of India and Smt. D.
Anuradha, the complainant. At the hearing of the appeals it was urged that
there was a doubt whether the Bar Council of India has committed an
arithmetical error in calculating the period of limitation and therefore
whether the review petition could at all be held barred by time. So, the
learned counsel for the Bar Council of India sought to support the order
dismissing the review petition on the alternative ground that on the language
of Section 48AA, the Bar Council of India becomes functus officio on the lapse
of 60 days from the date of the order and its jurisdiction to exercise power of
review comes to an end, and therefore also the impugned order dated 26.8.2001
has to be sustained. However, the learned counsel for the parties agreed that
the two questions relating to interpretation of Section 48AA are of frequent
occurrence and the Bar Council of India is also feeling difficulty in several
cases, and therefore desires both the questions may be answered by the Court.
Accordingly, the appeals have been heard.
So far as the commencement of period of limitation for filing the review
petition is concerned we are clearly of the opinion that the expression 'the
date of that order' as occurring in Section 48AA has to be construed as meaning
the date of communication or knowledge of the order to the review-petitioner.
Where the law provides a remedy to a person, the provision has to be so construed
in case of ambiguity as to make the availing of the remedy practical and the
exercise of power conferred on the authority meaningful and effective. A
construction which would render the provision nugatory ought to be avoided.
True, the process of interpretation cannot be utilized for implanting a heart
into a dead provision; however, the power to construe a provision of law can
always be so exercised as to give throb to a sinking heart.
An identical point came up for the consideration of this Court in Officer
& Anr., (1962) 1 SCR 676. Section 18 of the Land Acquisition Act, 1894,
contemplates an application seeking reference to the Court being filed within
six months from the date of the Collector's award. It was held that 'the date
of the award' cannot be determined solely by reference to the time when the
award is signed by the Collector or delivered by him in his office. It must
involve the consideration of the question as to when it was known to the party
concerned either actually or constructively. If that be the true position, then
placing a literal and mechanical construction on the words 'the date of the
award' occurring in the relevant section would not be appropriate. It is fair
and just that a decision is communicated to the party whose rights will
ultimately be affected or who will be affected by the decision. The knowledge,
either actual or constructive, of the party affected by such a decision, is an
essential element which must be satisfied before the decision can be brought
into force. Thus construed, the making of the award cannot consist merely of
the physical act of writing an award or signing it or even filing it in the
office of the Collector ; it must involve the communication of the said award
to the party concerned either actually or constructively. A literal or
mechanical way of construing the words 'from the date of the Collector's award'
was held to be unreasonable. The court assigned a practical meaning to the
expression by holding it as meaning the date when the award is either
communicated to the party or is known by him either actually or constructively.
The view taken in Raja Harish Chandra Raj Singh's case (supra) by two-Judges
Bench of this Court was affirmed by a three- Begum & Anr., (1964) 1 SCR
971. This Court added that the knowledge of the award does not mean a mere
knowledge of the fact that an award has been made ; the knowledge must relate
to the essential contents of the award.
Nand Singh, (1979) 4 SCC 19, the question of limitation for filing an appeal
under Section 15 of the U.P. Motor Vehicles Taxation Act, 1935, came up for the
consideration of this Court. It provides for an appeal being preferred 'within
thirty days from the date of such order'. The taxation officer passed an order
on October 20/24, 1964 which was received by the person aggrieved on October 29, 1964.
The appeal filed by him was within thirty days __ the prescribed period of
limitation, calculated from October 29, 1964, but beyond thirty days of October 24, 1964. It was held that the effective date for calculating the period of
limitation was October 29, 1964 and not October 24, 1964.
SCC 398, this Court pressed into service two legal maxims guiding and
assisting the Court while resolving an issue as to calculation of the period of
limitation prescribed, namely, (i) the law does not compel a man to do that
which he could not possibly perform, and (ii) an act of the court shall
prejudice no man. These principles support the view taken by us hereinabove.
Any view to the contrary would lead to an absurdity and anomaly. An order may
be passed without the knowledge of anyone except its author, may be kept in the
file and consigned to record room or the file may lie unattended, unwittingly
or by carelessness. In either case, the remedy against the order would be lost
by limitation though the person aggrieved or affected does not even know what
order has been passed. Such an interpretation cannot be countenanced.
How can a person concerned or a person aggrieved be expected to exercise the
right of review conferred by the provision unless the order is communicated to
or is known to him either actually or constructively? The words 'the date of
that order', therefore, mean and must be construed as meaning the date of
communication or knowledge, actual or constructive, of the order sought to be
(1971) 3 SCC 5, interpreting the pari materia provision contained in Section
44A of the Act, this Court held that the word 'otherwise' used in the context
of the power of review exercisable "of its own motion or otherwise"
must be assigned a wide meaning and it will cover a case where the review
jurisdiction is sought to be exercised by a reference made to the Bar Council.
The provision entitles a person aggrieved to invoke review jurisdiction of the
Bar Council by moving an appropriate petition for the purpose. It was also held
that the review jurisdiction conferred on the Bar Council is wide and reference
cannot be made to the provisions of the Civil Procedure Code so as to limit the
width of review jurisdiction by drawing an analogy from the provisions of the
Civil Procedure Code or the Criminal Procedure Code.
Placing such a construction, as we propose to, on the provision of Section
48AA is permitted by well settled principles of interpretation. Justice G.P.
Singh states in Principles of Statutory Interpretation (Eighth Edition, 2001),
"It may look somewhat paradoxical that plain meaning rule is not plain and
requires some explanation. The rule, that plain words require no construction,
starts with the premise that the words are plain, which is itself a conclusion
reached after construing the words. It is not possible to decide whether
certain words are plain or ambiguous unless they are studied in their context
and construed." (p.45) The rule of literal interpretation is also not to
be read literally. Such flexibility to the rule has to be attributed as is
attributable to the English language itself.
The learned author states again, "In selecting out of different
interpretations 'the court will adopt that which is just, reasonable and
sensible rather than that which is none of those things' as it may be presumed
'that the Legislature should have used the word in that interpretation which
least offends our sense of justice'. (p.113, ibid) "The courts strongly
lean against a construction which reduces the statute to a futility. A statute
or any enacting provision therein must be so construed as to make it effective
and operative 'on the principle expressed in the maxim: ut res magis valeat
quam pereat'." (p.36, ibid) "If the language used is capable of
bearing more than one construction, in selecting the true meaning regard must
be had to the consequences resulting from adopting the alternative
constructions. A construction that results in hardship, serious inconvenience,
injustice, absurdity or anomaly or which leads to inconsistency or uncertainty
and friction in the system which the statute purports to regulate has to be
rejected and preference should be given to that construction which avoids such
Reading word for word and assigning a literal meaning to Section 48AA would
lead to absurdity, futility and to such consequences as the Parliament could
have never intended. The provision has an ambiguity and is capable of being read
in more ways than one. We must, therefore, assign the provision a meaning __
and so read it __ as would give life to an otherwise lifeless letter and enable
the power of review conferred thereby being meaningfully availed and
On the same principle the provision has to be interpreted from the point of
view of exercise of the power by the Bar Council. The interpretation ought to
be directed towards giving the expression a meaning which will carry out the
purpose of the provision and make the remedy of review conferred by the
provision meaningful, practical and effective. How can the Bar Council of India
or any of its Committees exercise their power to review unless the matter is
before them? The jurisdiction to exercise power of review does not come to an
end merely by lapse of sixty days from the date of the order sought to be
reviewed. In view of the construction which we have placed hereinabove, in our
opinion, the expression 'sixty days from the date of that order' prescribes the
period of limitation for invoking the power of review. It has nothing to do
with the actual exercise of power by the Bar Council. In other words, merely by
lapse of sixty days from the date of the order sought to be reviewed, the Bar
Council of India or any of its Committees is not divested of its power to
exercise review jurisdiction. That is the only reasonable construction which
can be placed on the provision as framed; though we cannot resist observing
that the provision is not happily drafted.
In ordinary course, having held that the application filed by the petitioner
for invoking review jurisdiction was well within limitation and that the
jurisdiction to review was not lost by the Bar Council of India merely by lapse
of sixty days from the date of the order sought to be reviewed, we would have
left this matter to be heard and decided on merits by the Bar Council of India.
However, in the peculiar facts and circumstances of the case, we are not
inclined to remand the matter and we feel that the ends of justice would be
better satisfied if the controversy is set at rest here itself, fully and
finally. During the course of hearing, the learned counsel for the parties too
agreed to such a course being appropriate to follow. We, therefore, take up the
merits of the controversy as well.
The undisputed facts and the material brought on record clearly show that
the present one is a case which can be called an attempt to make a mountain out
of a molehill. The appellant is a handicapped person. He was allotted an STD
booth in the quota of handicapped persons for earning his livelihood much
before he was enrolled even as a lawyer and commenced apprenticeship. He firmly
claims to have kept himself busy in his legal profession from 10 to 5 p.m. by attending the Courts in morning and evening in the chambers of his senior.
His father had retired from service. The parents took up looking after of the
STD booth. As the allotment stood in the name of the appellant, he was advised
by the Bar Council to surrender the booth. The only ground on which he sought
for time for acting on the counsel tendered by the Bar Council was that
outstanding dues were to be collected which it would have been difficult to do
if he had abruptly surrendered the booth licence. However, the Bar Council was
not inclined to give more time. Faced with this situation, the appellant,
within a few days of the order of the Bar Council, surrendered the licence to
operate the STD booth and invited the attention of the Bar Council for taking
this event into consideration and recalling or suitably modifying its earlier
order. The appellant, a handicapped person, whose marriage also unfortunately
broke down, was keen on pursuing his career as an advocate and was still under
apprenticeship when the series of events forming subject matter of this
litigation happened. We have no reason to form any opinion other than this that
the Bar Council, if only it had exercised its review jurisdiction, would have
formed no opinion other than the one of condoning the innocuous lapse on the
part of the appellant who permitted the allotment of STD booth to continue in
his name though he had actually discontinued the operation of the STD booth by
himself. The Bar Council would certainly have taken a sympathetic view and
would not have deprived the appellant of the source of his bread and butter and
nipped in the bud the opportunity of blooming into an independent advocate to
In our opinion, all the appeals filed by appellant deserve to be allowed and
are allowed accordingly. The impugned orders of the Bar Council are set aside.
The enrolment of the appellant as an advocate shall stand restored.
So far as the civil writ petition is concerned, the vires of Section 48AA of
the Act were sought to be challenged only on the ground that the provision was
unworkable and unreasonable and, therefore, suffered from inherent infirmity.
In view of the construction which we have placed on the language of Section
48AA, the challenge to the constitutional validity of the provision does not
survive and the petition is held liable to be dismissed. It is dismissed